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Poster: cartoonsonfilm Date: Nov 28, 2009 7:07pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

If your intent was just that, a simple email to me would have gained you some cartoon footage for a feature film. No big deal. I still wonder, though, why this whole discussion had to start.

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Poster: yofitofu Date: Nov 29, 2009 10:28am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Well, for one thing, I was interested in the topic of restoration and whether it constituted public domain ownership in a more general sense. I didn't realize you and some of your friends monitored this forum rigorously. I thought that putting the question out to the general PD public would get a more thorough answer than just contacting you for a specific project. Video Cellar has answered that thoroughly - doubtful if I would have heard from him had I just contacted you.

I would probably not have posted anything had the legal claim on your website not provoked me. It seemed to indicate that you track usage of PD films you have transferred but that you wouldn't pursue legal action against other people who used the PD films after finding their own prints of the films and doing the transfers themselves.

Now, before everyone blows up in anger, I understand and appreciate the hard work archivists do. And it is refreshing to see people renewing a passion for finding and developing and bringing to the public long lost films, prints and transfers. Further, I understand the costs associated with this and would like archivists to be richly rewarded for their undertakings. It seems unfair that an archivists passionate hard work on the films they find could result in someone taking their work and using it without asking permission or paying compensation.

But where I draw the line is in the presumption that the finding and developing of PD materials constitutes some kind of ownership of them. This contradicted my understanding of what the public domain is. My impression is that I can acquire anything in the public domain, remaster it, clean it up, resize, telecine, deinterlace, etc. and then resell it in any way I choose. I can enrich you by buying the materials from you, enrich myself by performing additional improvements and then reselling it if I desire, and enrich the public domain for everyone along the way by making improved materials available to everyone. It was my thinking that this "pass it forward" kind of behavior made for a vibrant and stimulating PD world and a win-win for all people along the way.

What I did not anticipate was that this discussion would devolve into death threats and insulting obscenities because I had brought out this apparently taboo subject. The legalities apart, there are apparently courtesies to be followed in this regard, such as asking the permission of the archivist for what you might intend to do with the PD materials before you order them, and obtaining permission from the archivist in advance for your plans.

While this might seem to constitute an oral or written contract between the archivist and the end user, I guess that's what the public is supposed to do, as a courtesy. From the standpoint of the archivist, this is a respectful approach and defines courtesy in this business. From a legal standpoint, it would seem improper to enter into an oral or written contract with someone over PD materials, or for an archivist to impose restrictions of usage on PD materials they are developing or selling.

There is really no way around the discussion that won't offend the archivist and cause people to think that his hard work and efforts are being devalued. Or lead to paranoid speculation about the person making the inquiry. People immediately jump to the conclusion that the archivists hard work will be sold for $1 on porn sites, sold into slavery or given away on Archive.org.

Perhaps I am wrong, but that is the risk we all take in treasure hunting in the PD. You are uncovering intellectual property that, in spite of your loving care to polish it, catalogue it and preserve it, could be claimed by anyone at any time, thrown into a basement and left to collect dust. Or it could be duplicated and sold in stores for millions, none of which would be due to you. Or it could be put in a museum for the education of children. Or 1,000 other uses. I am not advocating any of this. It is just my understanding of the law - the cold, hard facts....

The point being is that after you find it, and then sell it, you really can't control what happens next. You have been compensated monetarily by selling it - once - if you are fortunate. Your only further compensation is to see it enjoyed, and, yes, even exploited by others, in the vast resource of the PD.

I am open to reasoned and thoughtful - and UNEMOTIONAL - responses to this, because I am trying to understand if there is an error in my thinking here. I welcome a reasoned discussion.

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Poster: cartoonsonfilm Date: Nov 29, 2009 11:38am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Hi Yofitofu,

There is nothing wrong with your perception of the P.D. as you explain it. I could be wrong, but I think what happened here was this:

You brought up a very valid discussion, the points of which were further explained by Video Cellar. Again, the text on my website was given to my web designed by a third party while I was unavailable to help with the creation of the site. It has now been changed since after reviewing it thanks to this topic, I don't think it properly reflected my operation and the spirit of the public domain.

I have indeed been emotional, as this questioned my personal activity, and I will not apologize for being defense and protective of my work. There was nothing wrong with your bringing up this topic. Though upon revealing that you had some commercial interests, a person like myself could interpret the worst, especially if the interest is ambiguous. If, let's say, you were simply going to use some of my PD footage in a feature film, that would be something I would love to assist with, and I still welcome you to contact me privately.

I completely understand the situation from your point of view and think you understand my position, too, since you are vocally supportive of archivists. I think the ambiguity in your interests is what caused some panic, even if you are entitled to do what you were considering doing.

Tom